1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1...

1. On March 6, 2017, the Defendant applied for a payment order against the Plaintiff for the payment order for the first new construction of the building C in Changwon District Court Decision 2017 tea168 (hereinafter “instant construction”). The Defendant received the payment order (hereinafter “instant payment order”) from the Defendant on March 6, 2017, stating that “the Plaintiff shall pay KRW 65,00,000 to the Defendant and its delay damages.” The said payment order was finalized on March 6, 2017.

[Reasons for Recognition] Unsured Facts, Entry of Evidence No. 2, the purport of the whole pleadings

2. Determination

A. 1) The Plaintiff’s assertion 1) The Plaintiff merely entered into a contract for construction with D and did not directly enter into a contract for construction with the Defendant. Therefore, the Defendant’s claim against the Plaintiff is nonexistent, and compulsory execution based on the instant payment order shall not be denied. 2) The Defendant’s assertion that the instant construction contract was concluded with the Plaintiff, or entered into the instant construction contract with D with the Plaintiff and the parties involved in the same business, and completed the instant construction. As such, the Defendant has a claim against the Plaintiff for the remaining amount of KRW 65,00,000, which remains after deducting the construction cost of KRW 12,00,000 from the construction cost of KRW 77,00,00

Even if the Plaintiff and D are not the partnership business, and the Defendant is only D’s subcontractor, the Plaintiff explicitly expressed his intention to pay the unpaid amount as the owner of the subcontractor, so the Defendant has a claim for the said construction payment against the Plaintiff.

B. In the case of a final and conclusive payment order, the grounds for failure or invalidation arising prior to the issuance of the payment order may be asserted in the lawsuit of demurrer against the payment order with respect to the claim which became the cause of the claim for the payment order, and the burden of proof as to the grounds of objection in the lawsuit of objection shall also be in accordance with the principle of burden of proof distribution in general civil procedure.